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111th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 111-294
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PUERTO RICO DEMOCRACY ACT OF 2009
_______
October 8, 2009.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Rahall, from the Committee on Natural Resources, submitted the
following
R E P O R T
together with
ADDITIONAL VIEWS
[To accompany H.R. 2499]
[Including cost estimate of the Congressional Budget Office]
The Committee on Natural Resources, to whom was referred the
bill (H.R. 2499) to provide for a federally sanctioned self-
determination process for the people of Puerto Rico, having
considered the same, report favorably thereon with an amendment
and recommend that the bill as amended do pass.
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Puerto Rico Democracy Act of 2009''.
SEC. 2. FEDERALLY SANCTIONED PROCESS FOR PUERTO RICO'S SELF-
DETERMINATION.
(a) First Plebiscite.--The Government of Puerto Rico is authorized to
conduct a plebiscite in Puerto Rico. The 2 options set forth on the
ballot shall be preceded by the following statement: ``Instructions:
Mark one of the following 2 options:
``(1) Puerto Rico should continue to have its present form of
political status. If you agree, mark here __.
``(2) Puerto Rico should have a different political status.
If you agree, mark here __.''.
(b) Procedure if Majority in First Plebiscite Favors Option 1.--If a
majority of the ballots in the plebiscite are cast in favor of Option
1, the Government of Puerto Rico is authorized to conduct additional
plebiscites under subsection (a) at intervals of every 8 years from the
date that the results of the prior plebiscite are certified under
section 3(d).
(c) Procedure if Majority in First Plebiscite Favors Option 2.--If a
majority of the ballots in a plebiscite conducted pursuant to
subsection (a) or (b) are cast in favor of Option 2, the Government of
Puerto Rico is authorized to conduct a plebiscite on the following 3
options:
(1) Independence: Puerto Rico should become fully independent
from the United States. If you agree, mark here __.
(2) Sovereignty in Association with the United States: Puerto
Rico and the United States should form a political association
between sovereign nations that will not be subject to the
Territorial Clause of the United States Constitution. If you
agree, mark here __.
(3) Statehood: Puerto Rico should be admitted as a State of
the Union. If you agree, mark here __.
SEC. 3. APPLICABLE LAWS AND OTHER REQUIREMENTS.
(a) Applicable Laws.--All Federal laws applicable to the election of
the Resident Commissioner shall, as appropriate and consistent with
this Act, also apply to any plebiscites held pursuant to this Act. Any
reference in such Federal laws to elections shall be considered, as
appropriate, to be a reference to the plebiscites, unless it would
frustrate the purposes of this Act.
(b) Rules and Regulations.--The Puerto Rico State Elections
Commission shall issue all rules and regulations necessary to carry out
the plebiscites under this Act.
(c) Eligibility To Vote.--Each of the following shall be eligible to
vote in any plebiscite held under this Act:
(1) All eligible voters under the electoral laws in effect in
Puerto Rico at the time the plebiscite is held.
(2) All United States citizens born in Puerto Rico who
comply, to the satisfaction of the Puerto Rico State Elections
Commission, with all Commission requirements (other than the
residency requirement) applicable to eligibility to vote in a
general election in Puerto Rico. Persons eligible to vote under
this subsection shall, upon timely request submitted to the
Commission in compliance with any terms imposed by the
Electoral Law of Puerto Rico, be entitled to receive an
absentee ballot for the plebiscite.
(d) Certification of Plebiscite Results.--The Puerto Rico State
Elections Commission shall certify the results of any plebiscite held
under this Act to the President of the United States and to the Members
of the Senate and House of Representatives of the United States.
(e) English Ballots.--The Puerto Rico State Elections Commission
shall ensure that all ballots used for any plebiscite held under this
Act include the full content of the ballot printed in English.
(f) Plebiscite Costs.--All costs associated with any plebiscite held
under this Act (including the printing, distribution, transportation,
collection, and counting of all ballots) shall be paid for by the
Commonwealth of Puerto Rico.
PURPOSE OF THE BILL
The purpose of H.R. 2499 is to provide for a federally
sanctioned self-determination process for the people of Puerto
Rico.
BACKGROUND AND NEED FOR LEGISLATION
Puerto Rico has been a U.S. territory since 1898, when it
was ceded to the United States by Spain under the treaty that
ended the Spanish-American War. The U.S. Supreme Court has held
that Puerto Rico has not been incorporated into the United
States (Downes v. Bidwell, 182 U.S. 244). This means, among
other things, that Puerto Rico's ultimate political status has
not been resolved. Incorporated territories are those destined
for statehood, whereas unincorporated territories can become
sovereign nations or States. Persons born in Puerto Rico have
been granted U.S. citizenship by federal statute since 1917.
Through its Territorial Clause (Article 4, Section 3,
Clause 2), the Constitution gives Congress full power to govern
territories. The only limit on this power is that residents of
the territories possess certain fundamental rights that cannot
be abridged. The power of Congress includes the authority to
govern territories in local as well as national matters.
Congress, however, has granted Puerto Rico authority over local
matters similar to the authority possessed by the states. In
1950, Congress enacted a law authorizing Puerto Rico to draft a
local constitution, which was ratified by the people of Puerto
Rico and approved by Congress in 1952. In the exercise of its
powers, Congress may choose to treat Puerto Rico differently
than the States, the District of Columbia, and other
territories. While Puerto Rico is treated as a state for many
purposes, there are significant exceptions with respect to
certain programs (e.g., Medicaid, Medicare, Supplemental
Security Income) and tax law.
The Constitution does not directly provide for residents of
territories to be represented in Congress or to participate in
the election of the president of the United States. Pursuant to
statute and the Rules of the House, the nearly four million
residents of Puerto Rico elect a single Resident Commissioner,
who has been given membership in the U.S. House of
Representatives and limited voting rights in committees.
Because residents of Puerto Rico do not have anything
approaching equal voting representation in the government that
enacts and enforces their national laws, they do not enjoy full
democracy at the national government level.
Puerto Rico has been under the U.S. flag for 111 years and
its residents have been U.S. citizens for more than 90 years.
Yet, in that time, the people of Puerto Rico have not expressed
their views--in a vote authorized by the Government of the
United States--on the question of whether they want the current
status to continue or, in the alternative, whether they would
prefer that Puerto Rico become a State or a sovereign nation,
either fully independent from or in an association with the
United States.
The debate over Puerto Rico's political status has been--
and remains today--the central issue in the territory's
political life. In the period immediately following Puerto
Rico's acquisition by the United States in 1898, Puerto Rico's
leaders generally expected equality and eventual statehood.
However, a competing nationalist sentiment emerged among a
segment of Puerto Rico's residents. It was spurred in
considerable part by Supreme Court rulings that Puerto Rico had
not been incorporated into the United States--meaning that it
would not necessarily become a state--and by laws enacted in
the first two decades of the twentieth century that, in certain
respects, granted Puerto Rico less self-government and
representation in the national government than it had been
afforded under Spanish rule.
Subsequently, certain leaders in Puerto Rico developed
ideas for a new political status and relationship between the
United States and Puerto Rico. The proposal was a hybrid,
containing elements of territory status, statehood, and
national sovereignty, and was rooted in the recognition that
many residents of Puerto Rico valued their U.S. citizenship and
that key U.S. officials opposed independence.
Such hybrid status proposals have undergone various
iterations--and been given various names--over the years. Under
the most recent version--put forth in 1998 and called
``Development of the Commonwealth''--Puerto Rico would be
recognized as a nation but in an association with the United
States. The U.S. could not withdraw from this association or
modify its terms without the consent of Puerto Rico. Certain
federal laws would apply in Puerto Rico, but Puerto Rico would
have the power to nullify the application of other federal laws
and to limit the jurisdiction of the federal courts. Puerto
Rico would also have the power to join international
organizations and enter into international agreements.
Residents of Puerto Rico would be granted U.S. citizenship in
perpetuity and continue to receive all current federal
assistance. The federal government would be required to grant
Puerto Rico a subsidy--in the form of an annual block grant--
and to enact incentives to encourage investment in Puerto Rico.
Proposals for such a governing arrangement have been
consistently opposed by federal authorities in the executive
and legislative branches, including this Committee, on both
constitutional and policy grounds. Nevertheless, this hybrid
proposal continues to be promoted in Puerto Rico as a feasible
status option. Such proposals have resulted in misinformed and
inconclusive referenda in Puerto Rico in July 1967, November
1993, and December 1998.
Lack of clear understanding in Puerto Rico regarding its
viable, non-territorial status options is a chief reason for
this legislation. A federal law would clarify the viable status
options and thereby ensure that the self-determination process
is well-informed and productive. In addition to the current
territory status, there are three real status options that have
support in Puerto Rico: (1) independence, (2) national
sovereignty in association with the United States, whereby
Puerto Rico and the U.S. would form a political association the
terms of which would be negotiated between the parties and
which would be terminable by either party, and (3) statehood.
Origins of the Bill
The status referendum held in Puerto Rico in 1998 included
a ``None of the above'' choice, in addition to the current
status, independence, nationhood in association with the United
States, and statehood. Advocates of the ``Development of the
Commonwealth'' proposal campaigned for a ``None of the above''
vote. ``None of the above'' obtained just over 50% of the vote,
statehood obtained 46.5%, independence obtained 2.5%,
nationhood in association with the United States obtained .02%,
and the current status obtained .01%.
Because neither ``None of the above'' nor the ``Development
of the Commonwealth'' proposal could become Puerto Rico's
status, President William J. Clinton called for Puerto Rico's
viable status options to be clarified and for a referendum to
take place on those options. The then-Chairman and Ranking
Member of this Committee, Don Young (R-AK) and George Miller
(D-CA), issued a similar call. To facilitate this process,
President Clinton established the President's Task Force on
Puerto Rico's Status.
In 2005, after extensive consultations with Puerto Rico's
political parties, the Task Force issued a report recommending
that Congress provide for a referendum in which the people of
Puerto Rico would express their preference between continuing
the current territory status and seeking a non-territory
status. If the referendum resulted in a majority favoring the
current status, the Task Force recommended that further
referenda on the question be held periodically. If the
referendum resulted in a majority expressing the desire to seek
a non-territory status, the Task Force recommended that
Congress provide for a referendum between statehood and
nationhood. A bill (H.R. 4867) to implement the process
recommended by the Task Force was introduced in the 109th
Congress by then-Resident Commissioner--and now Governor--Luis
G. Fortuno (R-PR) and was co-sponsored by 110 Members. A
similar bill (H.R. 900) was introduced in the 110th Congress by
Rep. Jose Serrano (D-NY) and cosponsored by 128 Members,
including Resident Commissioner Fortuno. An amended version of
the bill was favorably reported by this Committee.
COMMITTEE ACTION
H.R. 2499 was introduced on May 19, 2009, by Resident
Commissioner Pedro R. Pierluisi (D-PR). It was referred to the
Committee on Natural Resources. On June 24, 2009, the Committee
held a hearing on the bill. Witnesses included the governor of
Puerto Rico, who also serves as the president of one of the
territory's three major political parties; the presidents of
Puerto Rico's other two major political parties; the presiding
officers of the Legislative Assembly of Puerto Rico; the
minority leader of the Puerto Rico Senate and a designee of the
minority leader of the Puerto Rico House of Representatives; a
former governor and resident commissioner; and Representatives
Dan Burton (R-IN) and Alan Grayson (D-FL).
On July 22, 2009, the Committee met to consider the bill.
Representative Henry E. Brown (R-SC) offered an amendment that
would require the Puerto Rico State Elections Commission to
ensure that all ballots used for any plebiscite held under the
Act include the full content of the ballot printed in English.
The amendment was agreed to by a rollcall vote of 35-0, as
follows:
Representative Jason Chaffetz (R-UT) offered an amendment
that would require that all costs associated with any
plebiscite held under this Act be paid for by the Government of
Puerto Rico. The amendment was agreed to by voice vote.
Representative Jason Chaffetz (R-UT) offered an additional
amendment that would require that two-thirds of voters, rather
than a majority, vote in favor of a different political status
in the first-stage plebiscite authorized by the bill in order
to proceed to the second-stage plebiscite. The amendment would
also add a ``Sense of Congress'' that any status option
receiving less than two-thirds support in the second-stage
plebiscite should not be the basis of any further legislative
action by Congress. The amendment was not agreed to by voice
vote.
Representative Paul C. Broun (R-GA) offered an amendment
that would require that, if Puerto Rico were to become a State,
its official language would be English and all its official
business would be conducted in English. The amendment was not
agreed to by a rollcall vote of 13-24, as follows:
The bill was then favorably reported, as amended, to the
House of Representatives by a rollcall vote of 30-8, as
follows:
SECTION-BY-SECTION ANALYSIS
Section 1. Short title
Section 1 provides that this Act may be cited as the
``Puerto Rico Democracy Act of 2009.''
Section 2. Federally sanctioned process for Puerto Rico's self-
determination
Section 2(a) would authorize the Government of Puerto Rico
to conduct a plebiscite in which individuals eligible to vote
under the Act would express their preference as to whether they
want Puerto Rico to (1) continue to have its present form of
political status or (2) have a different political status.
Consistent with the principle of self-determination, the bill
would authorize--as opposed to require--the Government of
Puerto Rico to conduct this plebiscite.
The Committee believes that it is both logical and sensible
to ask eligible voters the threshold question of whether they
want to maintain the current status or to pursue a different
status before voters are asked to state their preference as to
which of Puerto Rico's alternative options they prefer. The
argument has been made that this plebiscite would place the
current status at a disadvantage because supporters of the
three alternatives to the current status would collectively
outnumber supporters of the current status. The factual
assumption that underlies this argument is speculative and open
to question, not least because some proponents of alternatives
to the current status might nonetheless vote for the current
status, based on their belief that a vote for an undetermined
different status might ultimately lead to an alternative status
they do not want. More fundamentally, the Committee strongly
believes that if more than 50 percent of eligible voters do not
support the present status, Congress and the President should
be aware of this fact, and voters should then be able to
express their preference among the non-territory alternatives
to the present status in a congressionally-authorized vote.
Section 2(b) provides that, if a majority of ballots are
cast in favor of continuing the present status, the Government
of Puerto Rico is authorized to periodically conduct additional
plebiscites on this question. A plebiscite held pursuant to
this subsection cannot be held earlier than eight years after
the certification of the results of a prior plebiscite on the
question. This subsection will provide for the people of Puerto
Rico to be consulted at reasonable intervals to obtain their
continued consent to an arrangement that does not provide for
self-government at the national government level. The Committee
believes that an eight-year period between plebiscites strikes
a reasonable balance. On the one hand, it will provide
continuing congressional authorization for a meaningful process
of self-determination in Puerto Rico. On the other hand, it
will allow for a substantial interlude between plebiscites, so
as to reduce the likelihood that the status debate will unduly
complicate efforts to address other important social, economic
and political issues in Puerto Rico.
Section 2(c) would authorize the Government of Puerto Rico,
in the event that a majority of voters in a plebiscite
conducted pursuant to Section 2(a) or 2(b) cast their ballots
in favor of a different political status, to conduct a second
plebiscite between the options of (1) independence, (2)
national sovereignty in association with the United States, and
(3) U.S. statehood. These constitute all of the alternatives to
the current status that have any support in the territory, and
exclude only the options of Puerto Rico becoming a sovereign
nation in association with a nation other than the United
States or becoming part of another nation. The three options in
the plebiscite also correspond to the options that the United
Nations has identified as the options for decolonizing a
territory.
Descriptions of independence and U.S. statehood would not
be provided on the ballot authorized by this subsection because
the meaning of independence is defined in international law and
practice and the meaning of U.S. statehood is defined by the
U.S. Constitution. National sovereignty in association with the
United States is also defined in international law, but this
subsection notes that an associated nation of Puerto Rico would
not be subject to congressional authority under the Territorial
Clause.
Section 3. Applicable laws and other requirements
Section 3(a) would make all federal laws that are
applicable to the election of the Resident Commissioner of
Puerto Rico applicable to the plebiscites authorized by the
Act.
Section 3(b) would authorize the Puerto Rico State
Elections Commission to make all policy necessary to carry out
the plebiscites.
Section 3(c) would prescribe the eligibility requirements
for voting in the plebiscites authorized by this Act. This
subsection would make eligible to vote (1) residents of Puerto
Rico who are otherwise eligible to vote under Puerto Rico
electoral law and (2) U.S. citizens who were born in Puerto
Rico but are not residents of Puerto Rico who are otherwise
eligible to vote under Puerto Rico electoral law.
The Committee understands that a substantial number of
individuals born in Puerto Rico but not currently residing
there hope to return to live in Puerto Rico one day.
Accordingly, they can be said to have a practical stake in
helping to determine Puerto Rico's future political status.
Although some individuals who are of Puerto Rican descent but
who were not born in Puerto Rico may also hope to live in
Puerto Rico one day, the proportion is likely to be less than
the proportion among individuals who were born in Puerto Rico.
This subsection makes eligible those born in Puerto Rico but
not those of Puerto Rican descent who were not born in Puerto
Rico, and thereby chooses place of birth rather than ethnic
identity as the eligibility criterion.
Section 3(d) would require the Puerto Rico State Elections
Commission to certify the results of the plebiscites authorized
by this Act to the President of the United States and to the
Members of the Senate and the House of Representatives of the
United States.
The Committee notes that the bill would not specify any
next steps by Congress once it has received the results of the
plebiscite among the three alternatives to the current status
because Congress would be better able to determine what should
be done based on the identity of the winning option and the
margin of victory.
Section 3(e) would require that the Puerto Rico State
Elections Commission ensure that all ballots used for any
plebiscite held under the Act include the full content of the
ballot printed in English.
Section 3(f) would require that all costs associated with
any plebiscite held under the Act be paid for by the Government
of Puerto Rico.
COMMITTEE OVERSIGHT FINDINGS AND RECOMMENDATIONS
Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of
rule XIII of the Rules of the House of Representatives, the
Committee on Natural Resources' oversight findings and
recommendations are reflected in the body of this report.
CONSTITUTIONAL AUTHORITY STATEMENT
Article IV, section 3 of the Constitution of the United
States grants Congress the authority to enact this bill.
COMPLIANCE WITH HOUSE RULE XIII
1. Cost of Legislation. Clause 3(d)(2) of rule XIII of the
Rules of the House of Representatives requires an estimate and
a comparison by the Committee of the costs which would be
incurred in carrying out this bill. However, clause 3(d)(3)(B)
of that rule provides that this requirement does not apply when
the Committee has included in its report a timely submitted
cost estimate of the bill prepared by the Director of the
Congressional Budget Office under section 402 of the
Congressional Budget Act of 1974.
2. Congressional Budget Act. As required by clause 3(c)(2)
of rule XIII of the Rules of the House of Representatives and
section 308(a) of the Congressional Budget Act of 1974, this
bill does not contain any new budget authority, spending
authority, credit authority, or an increase or decrease in
revenues or tax expenditures.
3. General Performance Goals and Objectives. As required by
clause 3(c)(4) of rule XIII, the general performance goal or
objective of this bill is to provide for a federally sanctioned
self-determination process for the people of Puerto Rico.
4. Congressional Budget Office Cost Estimate. Under clause
3(c)(3) of rule XIII of the Rules of the House of
Representatives and section 403 of the Congressional Budget Act
of 1974, the Committee has received the following cost estimate
for this bill from the Director of the Congressional Budget
Office:
H.R. 2499--Puerto Rico Democracy Act of 2009
H.R. 2499 would allow Puerto Rico to conduct a vote on
whether the island should retain its current relationship (a
commonwealth) with the United States or pursue a different
political status. If the vote favored retaining its current
political status, Puerto Rico would be authorized to conduct an
additional vote every eight years. If the vote favored a
different political status, the legislation would allow Puerto
Rico to conduct a second vote among three self-determination
options (independence, sovereignty in association with the
United States, or statehood). CBO estimates that enacting this
legislation would have no significant impact on the federal
budget because costs of conducting the votes would be paid by
Puerto Rico.
H.R. 2499 contains no intergovernmental or private-sector
mandates as defined in Unfunded Mandates Reform Act and would
impose no costs on state, local, or tribal governments.
The CBO staff contact for this estimate is Matthew
Pickford. This estimate was approved by Theresa Gullo, Deputy
Assistant Director for Budget Analysis.
COMPLIANCE WITH PUBLIC LAW 104-4
This bill contains no unfunded mandates.
EARMARK STATEMENT
H.R. 2499 does not contain any congressional earmarks,
limited tax benefits, or limited tariff benefits as defined in
clause 9 of rule XXI.
PREEMPTION OF STATE, LOCAL OR TRIBAL LAW
This bill is not intended to preempt any State, local or
tribal law.
CHANGES IN EXISTING LAW
If enacted, this bill would make no changes in existing
law.
ADDITIONAL VIEWS
During the Full Natural Resources Committee markup of H.R.
2499, the Puerto Rico Democracy Act, Congressman Jason Chaffetz
offered an amendment that required that a two-thirds vote, not
a simple majority, apply to any federally sanctioned plebiscite
vote to end the current 111 year relationship the United States
has with the Commonwealth of Puerto Rico. In addition, the
amendment stipulated that if less than two-thirds of the voters
in Puerto Rico selected either Statehood, Independence or a
Freely Associated State status that it was the Sense of
Congress that no further legislative action should occur on
that option.
The amendment was offered for several reasons. First,
during the past 60 years, the voters in Puerto Rico have gone
to the polls to express their views on four separate locally
sanctioned plebiscites. While the results of the first two
plebiscites were an endorsement of Commonwealth status, the
last two votes were inconclusive. If the people of Puerto Rico
desire to end their current relationship, then we believe that
at least 66 percent of those voting should make that decision.
Second, this requirement is consistent with what transpired
in the territorities of Alaska and Hawaii. In fact, on June 27,
1959, 132,938 residents of Hawaii voted affirmatively on the
question of: ``Shall Hawaii immediately be admitted into the
Union as a State.'' There were only 7,854 residents who voted
no on statehood which means that 94 percent of those voting
wanted to end their territorial status. Almost a year earlier,
40,452 Alaskan residents voted on the nearly identical question
of: ``Shall Alaska immediately be admitted into the Union as a
State.'' By contrast, 8,010 Alaskan residents voted no on
statehood. This represented a resounding 84 percent favorable
vote for statehood. As we know, 50 years ago, Alaska and Hawaii
became our 49th and 50th states respectively and there has been
no debate that the overwhelming majority of their citizens
supported statehood. Based on the results of the Alaska and
Hawaii plebiscites, this level of support should not be
insurmountable.
Finally, the issue of Puerto Rico's political status has
been debated passionately and in some isolated cases violently
for decades. Based on past election results, it is more than
likely that up to 50 percent of the population of the
Commonwealth of Puerto Rico or nearly 2 million people may feel
disenfranchised by the results of any plebiscite. As a
hypothetical example, if the voters choose to petition the
Congress for statehood, then clearly their case is enhanced if
84 or 94 percent of their voters have affirmatively endorsed
this idea. In contrast, if only 51 percent of voters support
statehood, this may well have a chilling impact on Puerto
Rico's success of achieving statehood.
During Committee debate on this amendment, the sponsor
indicated that becoming a state is similar to a marriage. On
their wedding day, nearly every bride and groom hopes that
their respective families will support their decision to enter
into this union. However, there are instances where some
members of the respective families oppose the impending union
and will by their actions or inactions bring marital discord to
the newlyweds. In this example, the effect is limited to the
married couple. However, in the case of Puerto Rico, unhappy
results will have a profound effect on millions of Puerto
Ricans who may well feel that a change in their political
status is being forced upon them.
We believe that a 66 percent majority vote is not
undemocratic, unfair or unattainable based on the experiences
in Alaska and Hawaii. Congress can establish any standard it
wants as a precondition for statehood. For example, in 1807,
the formerly predominantly French territory of Louisiana
adopted English as its official language as a precondition for
its admission into the Union as a State. Instead of being a
deterrent, we believe this level of local support for either
Statehood, Independence or a Freely Associated State status
will help the people of Puerto Rico make their case to the
Congress.
The election outcome in Puerto Rico must be clean,
unambiguous, fair and supported by a significant majority of
the residents of the Commonwealth. It is regrettable that the
proponents of H.R. 2499 felt that this amendment was premature
and were unwilling to accept this standard to help them in
their effort to clarify the future political status of Puerto
Rico. It is our hope that as H.R. 2499 moves through the
legislative process, the proponents of this measure will see
the wisdom of our approach.
Jason Chaffetz.
Cynthia Lummis.